Reference Re Persons of Japanese Race

In January 1942, paranoia among white Canadians on the west coast had reached its peak. On February 24, 1942, an order-in-council passed under the Defence of Canada Regulations made under the War Measures Act gave the federal government the power to intern all "persons of Japanese racial origin."[2] Nearly 21,000 people of Japanese descent were placed in these camps.

In December 1945, the federal Cabinet issued three Orders in Council:

• #7355 provided for the deportation of:

• all Japanese nationals who were not Canadian nationals,[3] who

• after the declaration of war with Japan had made a request for repatriation, or
• who were still detained under the Defence of Canada Regulations on 1 September 1945,

• naturalized British subjects of Japanese origin who requested such a move, and who had not revoked such a request in writing prior to 1 September 1945,
• natural born British subjects of Japanese origin who requested such a move (provided such request had not been revoked in writing prior to an order for deportation), plus
• wives and children of those involved.

• #7356 provided that naturalized British subjects who were so deported would lose that status.
• #7357 provided for inquiries to be held with respect to requests for repatriation.

After the war, these Orders in Council that authorized the deportation were challenged on the basis that the forced deportation of the Japanese was a crime against humanity and that a citizen could not be deported from their own country. The federal Cabinet posed the following reference question to the Supreme Court of Canada:

Are the Orders in Council dated the 15th day of December, 1945, being P.C. 7355, 7356 and 7357, ultra vires of the Governor in Council either in whole or in part and, if so, in what particular or particulars and to what extent?

The matter was heard by the Supreme Court in the first case heard in the newly constructed building housing the Court.

The SCC rendered a mixed ruling:

• the Court was unanimous as to the validity of deportations of Japanese nationals and naturalized British subjects
• In a 5-2 decision, the Court held that the validity of deportations was valid with respect to natural born British subjects
• In a 4-3 decision, they ruled that the provision relating to the deportation of wives and children was ultra vires, with Rand J, for the majority, specifying that deportation in relation to wives and children who did not fall within the classes of Japanese nationals and naturalized British subjects under the order was ultra vires
• In a 5-2 decision, the other two Orders in Council were declared intra vires

Three justices (Rand, Kellock and Estey JJ) stated that the Orders in Council continued to have effect after the War Measures Act ceased to be in force on 1 January 1946, by virtue of the National Emergency Transitional Powers Act, 1946.

The case was appealed to the Judicial Committee of the Privy Council, which declared that all three Orders in Council were intra vires, for the reasons given at the SCC by Rinfret CJ and Kerwin and Taschereau JJ.

In 1946, 3,965 people were repatriated to Japan.

In 1947, due to various protests among politicians and academics, the federal cabinet revoked the legislation to repatriate the remaining Japanese Canadians to Japan. It was only in April 1949 that all restrictions were lifted from Japanese Canadians. However, former Canadian citizens of Japanese ancestry now living in Japan were denied passports.[7]

The Canadian government also launched a Royal Commission (led by Justice Henry Bird) in 1947 to examine the issue of compensation for confiscated property. By 1950, the Bird Commission awarded $1.3 million in claims to 1,434 Japanese Canadians; however, it accepted only claims based on loss of property, refusing to compensate for wrongdoing in terms of civil rights, damages due to loss of earnings, disruption of education or other issues.[8]

On September 22, 1988, Prime Minister Brian Mulroney gave a formal apology and the Canadian government announced a compensation package, one month after President Ronald Reagan made similar gestures in the United States. The package for interned Japanese Canadians included $21,000 to each surviving internee, and the reinstatement of Canadian citizenship to those who were deported to Japan.[9] The agreement also awarded $12 million to the NAJC to promote human rights and support the community, and $24 million for the establishment of the Canadian Race Relations Foundation to push for the elimination of racism. Nothing was given for those that had been interned and died before compensation was given out.

• List of Supreme Court of Canada cases (Richards Court through Fauteux Court)
• Korematsu v. United States 32 U.S. 214 (1944) - similar US case